Visa Bulletin August 2017

The August 2017 Visa Bulletin is now in effect and with this month's visa bulletin we see retrogression in the EB-2 category for all countries, and continued backlogs in the EB-1 category for both India and China.  The Visa Bulletin is a publication from the U.S. Department of State, released monthly, that informs beneficiaries of employment-based and family-based immigrant petitions when they are eligible to undertake consular processing for immigrant visas or apply for adjustment of status in the United States for securing their lawful permanent resident ("green card") status.  In many categories and for several populous countries, there can be backlogs and years of waiting for a green card to become available.  Typically, the EB-1 category (available for Aliens of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers) is current all year round - meaning if a foreign national meets that criteria, he or she may file their green card application concurrently with the EB-1 petition.  Similarly, the EB-2 category for persons with advanced degrees or filing under the National Interest Waiver category is current for foreign national from most countries (China and India are notable exceptions) all year round.

With the July Visa Bulletin, the EB-1 category became backlogged for persons from India and China and that trend now extends to the EB-2 category for all other countries effective August 1, 2017.  Since the U.S. government runs on a fiscal year that begins October 1, most observers expect these categories will again become current this fall.  This trend, however, shows us that these categories are highly sought-after throughout the year and applicants would be wise to file as early in the fiscal year as possible, as waiting until the summer months brings with it a risk for backlogs and unavailability of green cards until the next fiscal year.

If you have questions concerning immigrant visa availability and the potential effects on your case, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Alert: emails from clientverification@state.gov are legitimate

We often see news alerts warning employers and individuals to be wary of phone calls and emails from those claiming to be from a U.S. immigration-related government agency. Recently, a number of U.S. employers began reporting they have been receiving emails fromclientverification@state.gov in which the sender was requesting confirmation that a foreign national will be providing services at the company, sparking obvious concern over whether these emails were part of a scam.  

Emails sent from this address, however, are not part of a scam. The American Immigration Lawyers Association ("AILA") has confirmed with the U.S. Department of State ("DOS") Visa Office that emails sent from an authorized contractor with the email address clientverification@state.gov are legitimate and employers should respond accordingly. Employers may want to consider adding that email address or the domain @state.gov to their individual or company-wide Safe Sender list to avoid these important emails ending up in junk or spam filters.  

If someone in your company receives one of these emails and needs advice on how to respond appropriately, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com. If in the future you receive any other email on an immigration-related matter that you think is suspicious, please reach out and seek advice prior to responding.

DOS releases June 2017 Visa Bulletin - EB-1 retrogression for China & India

As of June 1, 2017, foreign nationals from India and China filing in the EB-1 category may be temporarily unable to submit their I-485 Adjustment of Status applications concurrently with their I-140 employment-based immigrant visa applications. The EB-1 category is an employment-based category for priority workers that includes: 

• Aliens of Extraordinary Ability;
• Outstanding Professors and Researchers; and,
• Multinational Managers and Executives. 

According to the U.S. Department of State's ("DOS") June 2017 Visa Bulletin, the Final Action Chart shows the priority date for Indian and Chinese nationals has retrogressed to January 1, 2012. However, the Dates of Filing Chart lists those two countries (as well as all others in the EB-1 category) as "current." As of May 10, 2017, USCIS has not indicated which chart it will use for determining eligibility for filing adjustment of status applications. Based on past practice, USCIS will likely use the Final Action Chart. This means that as of June 1, 2017, Indian and Chinese nationals with priority dates earlier than January 1, 2012 will be eligible to submit their green card applications, and those with later priority dates will have to wait until immigrant visas become available in the coming months.  It may not be until October (when the U.S. government's new fiscal year begins) that the EB-1 category becomes current again for India and China.

Charles Oppenheimer, Chief of the Visa Control and Reporting Division with DOS, had previously stated EB-1 and EB-2 Worldwide demand at USCIS had increased dramatically, and had predicted a final action cut-off date would be imposed for EB-1 China and India no later than July. The EB-1 category remained current for nationals of all countries except India and China. If you have questions about the visa bulletin or eligibility for filing for adjustment of status, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.   

Visa Bulletin projections according to DOS's Charlie Oppenheim

In hopes of obtaining more in-depth analysis and insight into future immigrant visa availability than that provided in the monthly Visa Bulletin, each month the American Immigration Lawyers Association ("AILA") "checks-in" with Charlie Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS).  From these discussions, AILA can provide practitioners, employers and foreign nationals better projections so all parties can strategize accordingly.  Highlights from the December 2016 discussions include:

• EB-1: Based on current demand, Charlie predicts that a "final action cut-off date" will need to be imposed for EB-1 India and EB-1 China later this fiscal year.  If this happens, Form I-140 petitions can continue to be filed with USCIS but Form I-485 Adjustment of Status application cannot be filed until the priority date for those preference categories is current.  This could result in several months of delay, as was seen in fall 2016, so applicants who may be affected by this potential retrogression should consider filing their applications as soon as possible. 
• EB-2 Worldwide: Charlie expects to impose a "final action cut-off date" for EB-2 Worldwide at some point due to sizeable demand.  Lingering demand from cases that otherwise would have been approvable in August and September 2016 is partly responsible for this surge in demand, as are EB-3 India upgrades.
• EB-2 China: China has already exceeded its EB-2 quarterly limit, so there is unlikely to be any major forward movement.
• EB-2 India: Charlie continues to hope that EB-2 India will recover to the November 22, 2008 final action date retrogression from May 2015. However, EB-3 upgrades could negatively impact that recovery.
• EB-3 Worldwide: Demand has declined, allowing Charlie to advance this category slightly in January 2017. However, at some point when EB-2 Worldwide becomes subject to a "final action cut-off date", we may see applicants filing petitions to downgrade from EB-2 to EB-3 which will increase demand.

USCIS to host a teleconference on Conrad 30 waivers for physicians

USCIS and the Department of State ("DOS") Waiver Review Division will host a teleconference on Thursday, September 8, 2016 regarding the Conrad 30 Waiver Program. This waiver program permits J-1 foreign medical graduates who would otherwise be subject to the two-year home residency requirement to apply for a waiver if they meet the program eligibility criteria. Conrad Waivers are limited in number and are available through sponsorship by state health departments. To be eligible for the waiver, the J-1 medical doctor must agree to be employed full-time in H-1B nonimmigrant status at a health care facility located in an area designated by the U.S. Department of Health and Human Services ("HHS") as a Health Professional Shortage Area ("HPSA"), Medically Underserved Area ("MUA") or a Medically Underserved Population ("MUP"), obtain a no objection letter from his/her home country if the home government funded the J-1 exchange program, and begin the employment pursuant to a contract at a health care facility designated by HHS as a HPSA, MUA or MUP within 90 days of receipt of the waiver.

The teleconference will include an overview of the program, followed by USCIS officials answering non-case specific questions that were submitted in advance. DOS officials will also be on hand to answer non-case specific questions. Finally, the teleconference will include a listening session for taking feedback and suggestions for the program. To register for the program, visit the USCIS registration page. 

Lengthy waits for visa appointment times in India continue

In July our newsletter included a warning about lengthy wait times for visas in India in several visa categories, including H-1B and L-1. The delays for visa appointments in India continue with the current wait times listed on the DOS website as:

- 105 days in Chennai (up from 82 days in July)
- 120 days in Kolkata (up from 96 days in July)
- 93 days in Mumbai (up from 67 days in July); and,
- 112 days in New Delhi (up from 90 days in July).

Only one Indian consulate has addressed these substantial backlogs for appointments.  Wait times are down to 2 days in Hyderabad (it was 118 days in July). To check the most recent postings for visa wait times, please visit the U.S. Department of State's website. Always remember to plan your visa stamping well in advance of any international travel, and whenever possible take advantage of the interview waiver system available at some consulates abroad for renewing your visa.

Major changes in the August 2016 Visa Bulletin

As of August 1, 2016, foreign nationals from India and China filing in the EB-1 category will be temporarily unable to submit their I-485 Adjustment of Status applications concurrently with their I-140 employment-based immigrant visa applications. According to the U.S. Department of State's ("DOS") August 2016 Visa Bulletin, Indian and Chinese nationals with priority dates of January 1, 2010 and earlier will be eligible to submit their green card applications and those with later priority dates will have to wait until immigrant visas become available in the coming months. The EB-1 category remained current for nationals of all countries except India and China. Charles Oppenheimer, Chief of the Visa Control and Reporting Division with DOS, stated this cut-off date for China and India is expected to end on October 1, 2016 and adjudications can then resume on all EB-1 applications for permanent residence.

The August 2016 Visa Bulletin also has a worldwide cut-off date of February 1, 2014 for EB-2 beneficiaries. EB-2 beneficiaries include those with approved Labor Certifications from the Department of Labor for those with advanced degrees or equivalent and applicants applying in the National Interest Waiver category. This worldwide cut-off is also expected to end on October 1, 2016 making these petitions current and processing of permanent residence applications available for all countries other than China and India. According to Mr. Oppenheimer, significant movement will also be made in October for all countries in the EB-3 preference category.  Together, these changes will allow many thousands of EB-1, EB-2 and EB-3 workers to apply for Adjustment of Status or seek consular processing of their immigrant visa applications this fall. If you have questions about the visa bulletin or eligibility for filing for adjustment of status, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Lengthy wait times for visa appointments in India

U.S. Consular Posts in India began reporting lengthy wait times for nonimmigrant visa interview appointments in June.  These substantial waiting periods continue and affect all nonimmigrant visa applicants other than B1/B2 visitors, F-1 students, and J-1 exchange visitors and their dependents.  Current wait times for appointments (as listed on the Department of State's website) for H-1B, L-1, O-1, and other affected nonimmigrant visa categories are:

• 82 days in Chennai;
• 118 days in Hyderabad;
• 96 days in Kolkata;
• 67 days in Mumbai; and,
• 90 days in New Delhi.

F-1 student visa appointments at some of the above-listed offices are taking as long as 36 days for scheduling. Accordingly, F-1 students should make visa appointments as early as possible to ensure timely visa processing for arrival to the U.S. for the fall semester.

The Department of State ("DOS") reports that demand for U.S. visas has increased by 80% since 2011 and DOS is currently requesting approval to add consular positions in an effort to decrease visa wait times. Until wait times subside, Indian nationals in the U.S. with expiring or expired visas should keep in mind the lengthy periods for obtaining an appointment and plan accordingly - perhaps even deferring international travel unless absolutely necessary to avoid extended waiting time abroad.  Although expedite requests are available for humanitarian issues and business emergencies, such requests should be made sparingly and with sufficient documentation to demonstrate the exigent circumstances. Additionally, visa applicants should also consider Third Country National (typically, Canada) processing (particularly for H-1B and L-1 visa holders) as a more efficient alternative.  Please note that Indian nationals require a Canadian visitor visa to enter Canada.

First-time tourist visa appointments suspended & other significant delays at the U.S. Embassy in Caracas, Venezuela

For the past several months, the Venezuelan Foreign Ministry has refused to issue visas for U.S. Embassy personnel, resulting in a severe staff shortage at the U.S. Embassy in Caracas. On May 18, 2016, the U.S. Department of State ("DOS") announced that due to limited staff, the U.S. Embassy in Caracas is forced to cease making appointments for certain visas and significantly limit the processing of others.

Until further notice, the Embassy in Caracas is no longer scheduling appointments for first-time business or tourist (B-1/B-2) visa applicants. For those who already paid the visa application fee prior to May 18, 2016, the Consulate will honor those paid fees for up to one year but will only be scheduling a limited number of appointments each day. Applicants should be prepared for the application process to take longer than expected. In addition, applicants applying for renewal of their U.S. visa or first-time applicants for any of the petition-based, student, or investor visas, a limited number of appointments for those visa types will be made available but wait times may be significant.

For immigrant-based visa applications, the Embassy has confirmed it will continue to schedule appointments as usual once the National Visa Center ("NVC") has notified them that cases are ready for an interview. For more information please visit:  http://caracas.usembassy.gov/news¬events/embassy¬news/new¬information¬niv¬visa-venezuela.html.  

Department of State announces new policy of visa revocation for DUI arrests

In a recent Q&A session, the Department of State's Visa Office discussed its new policy requiring consular officers to prudentially revoke nonimmigrant visas for driving under the influence ("DUI") arrests subsequent to visa issuance. The arrest alone is sufficient for DOS to prudentially revoke a visa based on suspected ineligibility - a conviction or admission is not required.  Although consular officers generally may revoke a visa only if the alien is ineligible under INA 212(a) (including for conviction of certain crimes, controlled substance violations, etc.) or is no longer entitled to the visa classification, the Department of State ("DOS") may revoke a visa if an ineligibility or lack of entitlement is suspected, or for virtually any other reason. This is known as a prudential revocation.  

Effective November 5, 2015, DOS implemented the requirement for consular officers to prudentially revoke nonimmigrant visas after a DUI arrest because the agency considers such an arrest as indicative of a possible ineligibility under the Immigration and Nationality Act ("INA"): ineligibility for a visa due to a possible physical or mental disorder associated with harmful behavior. Previously, a nonimmigrant's DUI arrest subsequent to being issued a visa did not pose an issue for a foreign national until the next time she or he sought to apply for a visa and would have to disclose the arrest on the visa application. 

DOS and its affiliated visa offices receive information on arrests and convictions through a number of U.S. government agencies' electronic databases, some of which do not include final dispositions of criminal charges after arrest. Following a DUI arrest, a foreign national in the U.S. on a nonimmigrant visa may receive a notice from a consulate stating his/her visa has been revoked due to derogatory information received by DOS and that the visa is not valid for future travel to the U.S. Although affected visa holders are not required to immediately depart the U.S., they are required to present the visa at the consulate for physical cancellation upon returning abroad. Revocation does not preclude a foreign national from reapplying for a new visa, but the DUI arrest would have to be disclosed on any future visa application.

This is a major change in policy and has the potential to affect a significant number of visa holders currently living and working in the U.S. who have been arrested for a DUI within the past five years and who have not yet had opportunity to disclose that information on a visa application. For more information on DOS's new policy and to view the updated Foreign Affairs Manual ("FAM") that includes the DUI arrest provision visit the FAM online.